There are only a handful of cases that deal with the intersection between a ‘deemed termination’ clause and the emergency leave provisions found in Section 50 of the Employment Standards Act, 2000 (the “ESA”). The most recent case is Revera Retirement LP, (2013) CanLII 9071 (ON LA).
The grievor was employed as a housekeeper. She started working for the employer in 1989. The employer regularly employs 50 or more employees.
On April 3, 2012, the crown on one of her teeth became dislodged and fell off. She was in significant pain, but completed her shift and called her dentist at the end of her shift to schedule an appointment. Unfortunately the dentists office was closed for the day. The following day, April 4, 2012, the grievor scheduled an emergency appointment with her dentist at 3 pm. According to the arbitrator:
The Grievor was scheduled to work on April 4, 2012 from 8:00-4:00; however, she swiped out and left the premises at 2:17. She did not ask permission from or inform any manager prior to leaving. The Grievor did advise her colleague, Debbie Philips, that she was leaving to attend the dentist prior to departing the workplace. Ms. Philips was employed as a Housekeeping Supervisor by the predecessor employer to Glynwood. Ms. Philips has not had any supervisory responsibility over the Grievor in more than ten years. Ms. Philips did not report the Grievor’s early departure to any member of the management team.
The dental appointment was necessary to deal with an emergency. The Grievor was having chronic and worsening pain as a result of a loose crown. The grievor failed to follow the proper procedures for reporting her absence from work.
A meeting was convened with the grievor on April 5, 2012 during which "the Grievor admitted to leaving her shift early and acknowledged that she did not inform a manager prior to doing so". Following a pre-approved vacation, the grievor was placed on a leave of absence and then terminated by letter dated May 22, 2012.
The collective agreement contained a deemed termination provision:
An employee shall lose all seniority and shall be deemed to have quit the employ of the Employer and the employment of the employee shall be deemed to have been terminated without further notice for any of the following reasons:
(f) leaving the Employer’s premises during regular working hours (not including meal breaks) without the permission of the Employer;
Furthermore, the collective agreement provided that "The Employer will comply with the requirements of the Employment Standards Act with respect to maternity leave, parental leave and emergency leave."
Absent the application of section 50 of the ESA the deemed termination clause would be strictly enforced. The effect of this would be to oust the arbitrators jurisdiction to mitigate against the "harsh consequences" of the clause.
Relying on a few earlier cases, Arbitrator Hayes concluded that "delay in providing the requisite note does not, however, vitiate the Grievor’s entitlement to a leave of absence under the ESA."
In Ryding-Regency Meat Packers Ltd. (2006) 155 L.A.C. (4th) 382 (Crljenica), the arbitrator considered the interaction between a deemed termination clause and the emergency leave sections of the ESA. The grievor failed to obtain company permission for his absence from work in circumstances where the emergency leave provisions would apply. The arbitrator held that a deemed termination provision could not be strictly construed where an employee brought him or herself within the scope of the emergency leave provisions in the ESA. Specifically:
Arbitrators have construed deemed termination clauses strictly [authorities omitted]. Thus to comply with article 10.5(d), the employer had to establish that the grievor was absent for two or more days (which has been made out), and that he was absent without company authorization. In my view, it cannot meet this requirement as, on the facts of this case, s.50 creates an absolute right to an emergency leave, without the need to obtain authorization from one’s employer. The need for the company’s authorization necessarily implies the right to deny authorization, which cannot occur under s.50. Thus, in accordance with the reasoning in Parry Sound, if Mr. Kelesis met the requirements of s.50, the employer could not rely on article 10.5(d), as it is more onerous than s.50 by adding an additional requirement of obtaining the company’s authorization.
The Arbitrator in Revera found that "the Grievor’s situation here presents a particularly sympathetic fact pattern" especially where "no question has ever been raised about the legitimacy of her requirement for emergency medical leave".
The failure to provide notice of the absence could, depending on the circumstances, attract discipline, but that does not remove the employee's absolute right to emergency leave under the ESA where the employee is able to establish that his or her circumstances fit within the four corners of that section. In other words, according to the Ministry of Labour's Policy and Interpretation Manual:
Any discipline for failing to provide notice in situations where such notice is required under section 50(3) (i.e., where section 50(4) does not apply) would have to be appropriately linked to the failure to give advance notice and must not, in effect penalize the employee for exercising the right to leave. The motive for any discipline that the employer does impose must clearly be the employee’s failure to give advance notice and not the taking of the leave itself.
In other words, as was accepted in Revera and Ryding-Regency a grievor "could be disciplined for failing to give notice, but he did not lose his entitlement to the emergency leave."
Deemed termination provisions are common in collective agreements. That said, they will generally have to give way to the leave provisions of the ESA where these are found to apply. Furthermore, the fact that the employee failed or delayed in providing timely notice of the leave, while opening the employee up to appropriate discipline, did not result in a loss of entitlement to the leave.
Employers would be well advised to fully investigate a matter before applying the arguably harsh consequences of a deemed termination clause. Automatic termination is not automatic where the ESA applies and care and patience are called for when applying a deemed termination provision.